Bomar, A. v. Fox, M.

J-S49024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ARTHUR BOMAR IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MARJORIE J. FOX, DISTRICT ATTORNEY,
GREENE COUNTY
Appellee No. 1725 WDA 2016
Appeal from the Order Dated October 13, 2016
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-MD-0000044-2015
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 12, 2017
Appellant, Arthur Bomar, appeals pro se from the order by the Court of
Common Pleas of Greene County that denied his petition for review of a
private criminal complaint that was disapproved by the Greene County
District Attorney’s Office. We affirm.
The relevant facts and procedural history of this action are as follows:
[Appellant, an inmate at State Correctional Institution (“SCI”) at
Greene,] alleged that[, on April 22, 2015,] the Capital Case
Manager, [Stephen] Longstreth, discriminated against him and
threatened him because of his religious belief in Islam.
[Appellant] alleged that Longstreth is motivated by racism and a
hate for Muslims. [Appellant] alleged that this behavior and
obscene and racial hate speech amount to Official Oppression
and Intimidation.
The District Attorney’s [] Chief County Detective David Lloyd Jr.,
in a letter dated May 6, 2015, disapproved the Private Criminal
Complaint, indicating that the “office is exercising its discretion
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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in disapproving your complaint.” An appeal from the denial was
filed on May 20, 2015.
. . . [The trial c]ourt scheduled [an] evidentiary hearing for
September 26, 2016 at 1:30 p.m.
* * *
On September 26, 2016, the matter was before the [trial c]ourt
for an evidentiary hearing. However, [Appellant] requested a
continuance seeking additional reasons why the Commonwealth
denied his Private Criminal Complaint. Th[e trial c]ourt granted
[Appellant]’s request, pending response from the District
Attorney. The [trial c]ourt further[] directed the Court
Administrator to set a video conference to resolve the appeal
upon receipt of the District Attorney’s response.
Further, th[e trial c]ourt granted [Appellant]’s request for a
transcript of the September 26, 2016 video hearing. Also, by a
separate Order th[e trial c]ourt admitted the seven-page
affidavit of Michael John Parrish, [Appellant]’s Witness.3 . . .
3
[Appellant] asserts that he was not able to call witnesses at
his evidentiary hearing. However, the [trial c]ourt does not
recall denying such a request, but in any event believes that
the [trial c]ourt did not abuse its discretion in denying the
relief requested. Furthermore, the [trial c]ourt specifically
allowed [Appellant] to submit a witness affidavit via US Mail,
that of Michael John Parrish.
* * *
On September 30, 2016, [Appellant] filed a Motion to Allow Him
to Submit His Witness Declaration/Affidavit (Relating to Michael
John Parrish).
On October 6, 2016, the District Attorney filed their
Memorandum in Response to Court Order. This Memorandum
informed the [trial c]ourt of the particular reasons for their
denial, stating unlikely success in the prosecution of the case
and that the Complaint lacked a sound factual basis for a
criminal prosecution.
Specifically, the Commonwealth stated that in the continuing
efforts regarding investigation of the allegations alleged by
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[Appellant], the Commonwealth was able to obtain specific
Department of Corrections records from [Appellant]’s Official
Inmate Grievance related to this incident. The District Attorney
again, after assessment of the additional information,
determined “that successful prosecution of the case would be
very unlikely and therefore rejection of the private criminal
complaint is still appropriate.”
The matter was scheduled for a video conference to be held on
October 9, 2016, at 9:00 a.m. By further Order, th[e trial c]ourt
acknowledged the receipt of the Affidavit of Michael John Parrish
([Appellant]’s Witness).
* * *
[On October 13, 2016, the trial c]ourt denied [Appellant]’s relief.
Therefore, after a careful review of the totality of the
circumstances, and after giving deference to the District
Attorney’s decision and absent a gross abuse of discretion, th[e
trial c]ourt Affirmed the District Attorney’s decision; th[e trial
c]ourt vacated the previous Order directing a video conference
to be scheduled, as now moot.
On October 19, 2016, [Appellant] filed a Memorandum of
Petitioner’s Reply to the Respondent’s Memorandum, alleging
various reasons why he is entitled to an evidentiary hearing.
Th[e trial c]ourt Denied Petitioner’s Request for an evidentiary
hearing, as being unnecessary.
[Appellant] filed his Notice of Appeal, on October 31, 2016,
appealing th[e trial c]ourt’s October 13, 2016 Order.
Order, 12/14/16, at 8-14 (unpaginated) (some formatting altered; one
footnote and citations to the record omitted).
Appellant raises the following issues on appeal, which we repeat
verbatim:
1. The [trial c]ourt improperly, erroneously, and
unconstitutionally denied claims presented by Petitioner in the
evidentiary hearing proceeding, including specifically.
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2. The [trial c]ourt committed an error of law and/or abused
its discretion or violated Petitioner’s constitutional rights to due
process when it denied him the ability to call witnesses to
present testimony at his hearing.
3. The [trial c]ourt committed an error of law and/or abused
its discretion when it determined that there was no averment of
bad faith to overcome the alleged policy-based decision not to
prosecute, Manager Stephen Longstreth, and if so, whether a
gross abuse of discretion had occurred.
4. The [trial c]ourt committed an error of law and/or abused
its discretion by forcing the Petitioner to prove his case to the
district attorney beyond a reasonable doubt, where in fact, the
complaint need only aver evidence sufficient to mount a prim[a]
facie case.
Appellant’s Brief at 3.1
Our standard of review follows:
Appellate examination of a trial court’s review of the District
Attorney’s decision to disapprove a private criminal complaint
implicates the following:
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1
The District Attorney did not respond individually to each issue raised by
Appellant but instead made one consolidated argument, in which she
contends that the trial court “properly affirmed the denial of the Appellant’s
private criminal complaint.” District Attorney’s Brief at 4. The District
Attorney also maintains that Appellant “has failed to establish that the trial
court acted improperly or abused its discretion.” Id. at 6. The District
Attorney further argues that Appellant’s private criminal complaint was
“rejected,” “because the actions alleged would be better dealt with through
the Department of Corrections Office of Special Investigations and
Intelligence and an evaluation of the case determined that it had a low
chance of successful prosecution.” Id. at 4 (citing N.T., 9/26/16, at 17-18).
We note, however, that the District Attorney did not raise the argument
regarding the Office of Special Investigations before the trial court.
Compare Mem. in Resp. to Ct. Order, 10/6/16, at 1-2 and N.T., 9/26/16, at
3-18, with District Attorney’s Brief at 4 (citing N.T., 9/26/16, at 17-18). We
need not address the merits of the District Attorney’s argument as Appellant
has not established entitlement to relief.
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[W]hen the district attorney disapproves a private criminal
complaint solely on the basis of legal conclusions, the trial
court undertakes de novo review of the matter.
Thereafter, the appellate court will review the trial court’s
decision for an error of law. As with all questions of law,
the appellate standard of review is de novo and the
appellate scope of review is plenary.
In re Miles, 170 A.3d 530, 534 (Pa. Super. 2017) (alteration in original and
citations omitted). But if the district attorney disapproves a private criminal
complaint based on policy considerations —
the trial court accords deference to the decision and will
not interfere with it in the absence of bad faith, fraud or
unconstitutionality. In the event the district attorney
offers a hybrid of legal and policy reasons for disapproval,
deference to the district attorney’s decision, rather than de
novo review is the appropriate standard....
* * *
Although a district attorney’s legal evaluation of the evidence
standing alone is subject to de novo review, there is no simple
formula for the trial court to determine what constitutes an
abuse of prosecutorial discretion.
In re Private Complaint of Wilson, 879 A.2d 199, 212 (Pa. Super. 2005)
(en banc) (alteration in original and citations omitted). “A determination
that the case lacks ‘prosecutorial merit’” is an example of a policy
consideration. Commonwealth v. Metzker, 658 A.2d 800, 801 (Pa. Super.
1995). “Courts will not disturb that decision unless there is a gross abuse of
discretion.” Id.In support of his first issue, Appellant contends that after “the affiant
has Petitioned the trial [c]ourt to grant independent review, the trial [c]ourt
must conduct a de nov[o] review of the complaint and determine whether its
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evidence satisfies a prima facie cause of action. Appellant’s Brief at 8 (citing
In re Private Complaint of Adams, 764 A.2d 577 (Pa. Super. 2000)). We
disagree.
Here, the district attorney’s denial was based on the lack of “a sound
factual basis for a criminal prosecution” and the “unlikely success in the
prosecution of the case,” Order, 12/14/16, at 12,2 which are a “legal
evaluation of the evidence” and a “policy consideration[],” respectively.
Wilson, 879 A.2d at 212; Metzker, 658 A.2d at 801. Therefore, the trial
court was required to defer to the District Attorney’s decision, rather than to
conduct a de novo review of the complaint. Appellant’s first challenge
therefore is meritless.
Appellant’s next claim is that the trial court “committed an error of law
and/or abused its discretion or violated [Appellant]’s constitutional rights to
____________________________________________
2
In Miles, we stated:
A private criminal complaint must at the outset set forth a prima
facie case of criminal conduct.
* * *
[E]ven if the facts recited in the complaint make out a
prima facie case, the district attorney cannot blindly bring
charges, particularly where an investigation may cause
him to question their validity. Forcing the prosecutor to
bring charges in every instance where a complaint sets out
a prima facie case would compel the district attorney to
bring cases he suspects, or has concluded via
investigation, are meritless.
170 A.3d at 535 (alteration in original and citations omitted).
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due process when it denied him the ability to call witnesses to present
testimony at his hearing.” Appellant’s Brief at 9. Relying on our decision in
Metzker, he argues:
[W]hen the district attorney refuses to file the criminal complaint
and the matter is appealed, the court is placed on the position of
addressing the decision of the district attorney. It cannot
properly and thoroughly do so as if it only focuses on the four
corners of a complaint to the exclusion of the district attorney’s
investigation of other material she considered.
Appellant’s Brief at 9.
The trial court stated that it “does not recall denying” a request by
Appellant to call witnesses. Order, 12/14/16, at 11 n.3. Our review of the
certified record discloses no evidence that the trial court denied such a
request. Indeed, the trial court allowed Appellant to submit an affidavit by a
witness, Michael John Parrish, by mail. Order, 12/14/16, at 11 n.3 & 12
(citing Order, 10/13/16). Accordingly, Parrish’s evidence was before the
trial court when it made its decision to deny Appellant relief. Therefore, no
relief is due on this issue.
To the extent that Appellant’s second issue could be construed as
alleging that the trial court did not consider the district attorney’s
investigation, as suggested by Appellant’s citation to Metzker, 658 A.2d
800, such a claim is likewise contradicted by the record. The trial court
specifically referenced the Commonwealth’s “continuing efforts regarding
investigation of the allegations alleged by [Appellant],” including that “the
Commonwealth was able to obtain specific Department of Corrections
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records from [Appellant]’s Official Inmate Grievance related to [the]
incident” on April 22, 2015 involving Longstreth. Order, 12/14/16, at 12
(citing Commonwealth’s Mem. in Resp. to Ct. Order, 10/6/16). Because the
trial court did consider “the district attorney’s investigation of other
material,” Appellant’s Brief at 9, Appellant is not due relief.
Next, Appellant contends that the trial court “committed an error of
law and/or abused its discretion when it determined that there was no
averment of bad faith to overcome the alleged policy-based decision not to
prosecute, Manager Stephen Longstreth, and if so, whether a gross abuse of
discretion had occurred.” Appellant’s Brief at 10. He continues that, “[b]y
the trial [c]ourt vacating the hearing that was scheduled for October []9,
2016, it placed [Appellant] in a position that he could not show the facts of
the case.” Id. Appellant concludes that “a De Novo hearing is needed if the
disapproval is based on legal reasons, and the [trial c]ourt is to apply an
‘abuse of discretion standard’ when the decision is a discretionary policy
consideration.” Id.Appellant appears to be arguing that the trial court should have made
specific findings that the district attorney’s disapproval was made “in the
absence of bad faith, fraud or unconstitutionality.” Wilson, 879 A.2d at
212. Nevertheless, Appellant does not allege what acts of “bad faith, fraud
or unconstitutionality” the trial court should have found or on what basis it
should have made such a finding; he merely makes a bald accusation. By
failing to appropriately develop his argument, he has not established
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entitlement to relief. See Zator v. Coachi, 939 A.2d 349, 351 (Pa. Super.
2007) (appellant’s undeveloped argument “failed to carry his burden of
persuasion on this point”), appeal denied, 961 A.2d 859 (Pa. 2008) & 961
A.2d 860 (Pa. 2008); Commonwealth v. Genovese, 675 A.2d 331, 334
(Pa. Super. 1996) (same).
Appellant’s final issue is that the trial court “committed an error of law
and/or abused its discretion by forcing [Appellant] to prove his case to the
district attorney beyond a reasonable doubt, where in fact, the complaint
need only aver evidence sufficient to mount a prima[]facie case.”
Appellant’s Brief at 11. Upon a thorough review of the record, we find no
support for Appellant’s claim that the trial court required him to prove his
case beyond a reasonable doubt. This claim therefore is meritless.
Appellant also states:
In the event the district attorney offers a hybrid of legal and
policy reasons for disapproval, deference to the district
attorney’s decision, rather than de novo review, is the
appropriate stand to be employed.
Further[, “]if the prosecutor’s decision was based upon a policy
determination that it would not be in the best interest of the
Commonwealth to prosecute, the trial Court Must defer to the
prosecutor’s discretion absent a gross abuse of discretion”. In
re Private Complaint of Owens Against Coker, [810 A.2d
172,] 175 [(Pa. Super. 2002), appeal denied, 821 A.2d 587(Pa. 2003) (]citing Michaels v. Barrasse, [681 A.2d 1362,]
1364-1365 [(Pa. Super. 1996)].
Lastly, See Commonwealth v. Jury, 431 Pa.Super, 129, 636
A.2d 164 (1993). . . . [T]he rule of Jury is that a private
complainant’s duty is limited to presenting the district attorney
with a prima facie case.
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Id. at 11 (some formatting altered; emphasis in original). We fail to see
how the case law Appellant cites entitles him to relief. Even if a complainant
has established a prima facie case in his private criminal complaint, the
district attorney is still under no obligation to bring criminal charges: a
prima facie case does not guarantee that a prosecution must occur. See
Miles, 170 A.3d at 535.
For all of these reasons, we conclude that the trial court did not err by
affirming the District Attorney’s refusal to prosecute the charges made in
Appellant’s private criminal complaint.
Order affirmed.
Judge Dubow joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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